...continued

 

d.       Article 8 - Unavailability of Legal Aid for Constitutional Motions

 

50.          The Petitioners claim that the State has violated Mr. Jacob's right under Article 8 of the Convention, because legal aid is not available to enable him to pursue a Constitutional Motion in the domestic courts in Grenada. The Petitioners maintain that Mr. Jacob is indigent and therefore lack the private resources to bring a Constitutional Motion to challenge violations of his Constitutional rights. The Petitioners also contend that there are a dearth of Grenadian lawyers who are willing to represent Mr. Jacob on a pro bono basis.  The Petitioners therefore claim that the failure of the State to provide legal aid for Mr. Jacob to pursue a Constitutional Motion denies Mr. Jacob an effective remedy, which includes access to the Courts in fact as well as in law. In support of this contention, the Petitioners rely upon the decisions of the European Court of Human Rights in the cases Golder v. UK, [32] and Airey v. Ireland, [33] in which the European Court held that Article 6 of the European Convention [34] imposed positive obligations on the States concerned to provide legal aid in the interests of justice.

 

51.          The Petitioners argue that a similar interpretation of Article 8 of the American Convention is appropriate. In particular, they argue that the Constitutional Motion in the circumstances of Mr. Jacob's case should be considered criminal proceedings for the purposes of Article 8(2) of the Convention, because they arise from earlier criminal proceedings, and might serve to quash his capital sentence. Consequently, the Petitioners argue that Article 8(2) of the Convention compels the State to provide legal aid to Mr. Jacob to pursue a Constitutional Motion relating to the criminal proceedings against him. The Petitioners also argue that the fact that Mr. Jacob will be executed if his Constitutional challenge fails, also weighs in favor of this interpretation.  

B.          Position of the State

 

52.          To date, the State has not responded to any of the Commission’s communications to it dated June 9, 1999 and September 25, 2000 nor has it presented any information to the Commission pertaining to the admissibility and merits of the petition, or the Commission’s offer to facilitate a friendly settlement between the parties.

 

IV.          ANALYSIS

 

A.        Competence of the Commission

 

53.          The Convention entered into force for the State of Grenada on July 18, 1978 upon deposit of its instrument of Ratification. The Petitioners allege violations of Articles 4, 5, 7, 8 and 24 of the Convention with respect to acts or omissions which transpired in Grenada after the Convention came into effect for Grenada. In addition, the petition in this case was lodged by the Petitioners, Solicitors from London, United Kingdom, on behalf of Benedict Jacob, a national of the State of Grenada. Consequently, the Commission has jurisdiction ratione temporis, ratione materiae, and ratione personae to consider the claims in this case.

 

B.           Other Grounds of Admissibility

 

1.          Exhaustion of Domestic Remedies

 

54.          The Petitioners argue that Mr. Jacob has exhausted the domestic remedies of Grenada upon the dismissal of his appeal against his conviction and sentence by the Eastern Caribbean Court of Appeal in Grenada on December 8, 1997. The Petitioners indicate that Mr. Jacob petitioned the Judicial Committee of the Privy Council for Special Leave to Appeal as a Poor Person, and that the Privy Council dismissed his petition on December 16, 1998. The State has not provided the Commission with observations concerning the admissibility, including the exhaustion of domestic remedies or merits of the petition, notwithstanding the Commission's communications to the State dated June 9, 1999 and September 25, 2000. Based upon the record before it, and in accordance with the jurisprudence of the Inter-American System including the Commission's previous decisions, [35] the Commission finds that the State tacitly waived its right to object to the admissibility of the Petitioners' petition based upon the exhaustion of domestic remedies rule. Therefore, the Commission finds that this petition is admissible under Article 46(1)(a) of the Convention.

 

2.          Timeliness of the Petition

 

55.          The Petitioners indicate that this petition was timely filed under Article 46(1)(b) of the Convention. The Petitioners contend that Mr. Jacob was convicted of murder and sentenced to death on June 30, 1997, he appealed his conviction and sentence to the Eastern Caribbean Court of Appeal of Grenada, and his appeal was dismissed by the Court on December 8, 1997.  The Petitioners indicate that Mr. Jacob petitioned the Judicial Committee of the Privy Council for Special Leave to Appeal as a Poor Person, and that the Privy Council dismissed his petition on December 16, 1998. The petition was filed before the Commission on May 21, 1999.  The State has not contested the admissibility of the petition on the ground of timeliness or otherwise demonstrated that the petition was not timely filed. [36]   Therefore, the Commission finds in accordance with its previous decisions [37] that this petition is admissible under Article 46(1)(b) of the American Convention.

 

3.          Duplication of Procedures

 

56.          The Petitioners have indicated that the subject of Mr. Jacob's petition has not been submitted for examination under any other procedure of international investigation. The State has not contested the issue of duplication of procedures. Therefore, the Commission finds that the petition is admissible under Articles 46(1)(c) and 47(d) of the Convention.

 

4.          Colorable Claim

 

57.          The Petitioners have alleged that the State has violated Mr. Jacob's rights under Articles 4, 5, 8, and 24 of the Convention, and have provided factual allegations that tend to establish that the alleged violations may be well-founded. The Commission therefore concludes, without prejudging the merits of the case, that the Petitioners have presented colorable claims of violations of Mr. Jacob's rights and the petition is not rendered inadmissible under Articles 47(b) or 47(c) of the Convention.

 

5.          Conclusion on Admissibility

 

58.          In accordance with the foregoing analysis of the requirements of the Convention and the applicable provisions of the Commission's Regulations, and without prejudging the merits of this petition, the Commission decides to declare the claims presented in Mr. Jacob's petition admissible, pursuant to Article 46 of the Convention.

 

B.       The Merits of the Petition

 

1.           Standard of Review

 

59.          In response to the various standards that the parties have suggested should guide the Commission in determining the issues before it, the Commission wishes to clarify that it will undertake its review of the merits of the Petitioners' claims in accordance with the Commission's heightened scrutiny test. According to this standard of review, the Commission will subject the parties' allegations to an enhanced level of scrutiny in order to ensure that any deprivation of life effected by a State Party pursuant to a death sentence complies strictly with the provisions of the Convention, including in particular Articles 4, 5, 7, and 8 of the Convention. [38] The heightened scrutiny test is, as the Commission has previously recognized, consistent with the restrictive approach to the death penalty provisions of human rights treaties taken by the Commission and other international authorities. [39] The heightened scrutiny test is also not precluded by the Commission's fourth instance formula, according to which the Commission in principle will not review the judgments issued by the domestic courts acting within their competence and with due judicial guarantees, unless a petitioner’s allegations entail a possible violation of any of the rights set forth in the Convention. [40] The Commission will therefore apply the heightened scrutiny standard in determining the complaint in the present case.  

2.       Articles 4, 5, and 8 of the Convention - Mandatory Nature of the Death Penalty

 

a.       Mr. Jacob has been sentenced to a mandatory death penalty

 

60.          As detailed previously, the Petitioners allege: (i) violations of Articles 4, 5, 8, and 24 of the Convention, relating to the mandatory nature of the death penalty and the process for granting amnesty, pardon or commutation of sentence in Grenada; (ii) violations of Article 5 of the Convention pertaining to Mr. Jacob's conditions of detention; and (iii) violations of Article 8 of the Convention, relating to the unavailability of legal aid for Constitutional Motions in Grenada.

 

61.          As noted previously, the State has not responded to the Commission’s communications of June 9, 1999, and September 25, 2000, that the State deemed relevant pertaining to the exhaustion of domestic remedies and the claims raised in Mr. Jacob's petition, nor has the State responded to the Commission's communication regarding the possibility of a friendly settlement in Mr. Jacob's case. As a consequence, in determining the merits of the Petitioners' allegations in relation to Mr. Jacob, the Commission will presume the facts as reported in Mr. Jacob's petition to be true pursuant to Article 39 of the Commission’s Rules of Procedures, provided that the evidence does not lead to a different conclusion, in accordance with Article 39 of the Commission's Rules of Procedure.

 

62.          Mr. Jacob was convicted of murder pursuant to Section 234 of the Criminal Code of Grenada, which provides that "[w]hoever commits murder shall be liable to suffer death and sentenced to death." [41] The crime of murder in Grenada can therefore be regarded as subject to a "mandatory death penalty," namely a death sentence that the law compels the sentencing authority to impose based solely upon the category of crime for which the defendant is found responsible. Once a defendant is found guilty of the crime of murder, the death penalty must be imposed. Accordingly, mitigating circumstances cannot be taken into account by a court in imposing the death sentence and therefore once the jury found Mr. Jacob guilty of capital murder, the death penalty was the only available punishment.  The State has not denied the mandatory nature of Mr. Jacob's death sentence.  In the case of Paul Lallion Case 11.765 which is also before this Commission, the State indicated the following in its Reply to the petition by confirming that the sentence of death is mandatory in Grenada and states the following:

 

In Grenada the sentence of death is the mandatory sentence for murder under Section 230 of the Criminal Code Cap. 1 which has not been amended in any respect material to the issue under consideration since its enactment. The manner of execution of sentence authorized by law is by hanging and the passing of the sentence also provides lawful authority for the detention of the condemned man in prison until such time as the sentence is executed.  The continuing constitutional validity of the death sentence is put beyond all doubt by Section 2(1) which reads:

 

No person shall be deprived of his life intentionally save in execution of the sentence of a court in respect of a criminal offence under the law of Grenada of which he has been convicted.  

 

          63.          Therefore, as the Commission has determined in previous cases, [42] that the crimes of capital murder in Grenada can be regarded as being subject to a "mandatory death penalty", namely a death sentence that the law compels the sentencing authority to impose based solely upon the category of crime for which the defendant is found responsible. Once a defendant is found guilty of the crime of capital murder, the death penalty must be imposed. Accordingly, mitigating circumstances cannot be taken into account by a court in sentencing an individual to death once a conviction for capital murder has been rendered.

 

64.          As indicated in Part III of this Report, Mr. Jacob has alleged that the State violated his rights pursuant to Articles 4(1), 4(2), 4(6), 5(1), 5(2), 8 and 24 of the American Convention, because he was sentenced to a mandatory death penalty for the crime of murder. Mr. Jacob has also argued that the process for granting amnesty, pardon or commutation of sentence in Grenada does not provide an adequate opportunity for considering individual circumstances, and in itself violates Article 4(6) of the Convention.

 

b.       Mr. Jacob's mandatory death penalty, Articles 4, 5, and 8 of the American Convention

 

65.          In previous cases [43] involving the application of capital punishment under the Section 234 of the Criminal Code of Grenada, the Commission has evaluated the mandatory nature of the death penalty under that legislation in light of Article 4 (right to life), [44] Article 5 (right to humane treatment) [45] and Article 8 (right to a fair trial) [46] of the Convention and the principles underlying those provisions. It has also considered the mandatory death penalty in light of pertinent authorities in other international and domestic jurisdictions, to the extent that those authorities may inform the appropriate standards to be applied under the American Convention. [47] Based upon these considerations and analysis, the Commission has reached the following conclusions.

 

66.          First, the Commission has found that the supervisory bodies of international human rights instruments have subjected the death penalty provisions of their governing instruments to a rule of restrictive interpretation, to ensure that the law strictly controls and limits the circumstances in which a person may be deprived of his life by authorities of the state. This includes strict compliance with standards of due process. [48]

 

67.          In addition, the Commission has identified a general recognition by domestic and international authorities that the death penalty is a form of punishment that differs in substance as well as in degree in comparison with other means of punishment. It is the absolute form of punishment that results in the forfeiture of the most valuable of rights, the right to life and, once implemented, is irrevocable and irreparable. The Commission has accordingly determined that the fact that the death penalty is an exceptional form of punishment must also be considered in interpreting Article 4 of the American Convention. [49]

 

68.          Finally, the Commission has observed that under the express terms of Article 4 of the Convention, certain circumstances of individual offenses and individual defendants may bar the imposition or application of the death penalty altogether, and as a consequence must be taken into account in sentencing an individual to death. [50]

 

69.          In the context of these interpretive rules and principles, the Commission has also previously evaluated mandatory death penalty legislation under Articles 4, 5 and 8 of the Convention, and has concluded that imposing the death penalty through mandatory sentencing, as Grenada and Jamaica have done in respect of crime of capital murder, is not consistent with the terms of Articles 4(1), 5(1), 5(2), 8(1) and 8(2) of the Convention and the principles underlying those Articles. [51] The Commission observes in this regard that a majority of the UN Human Rights Committee recently reached a similar conclusion in the context of Article 6(1) of the International Covenant on Civil and Political Rights. [52]

 

70.          The Commission has determined that imposing the death penalty in a manner that conforms with Articles 4, 5 and 8 of the Convention requires an effective mechanism by which a defendant may present representations and evidence to the sentencing court as to whether the death penalty is a permissible or appropriate form of punishment in the circumstances of his case. In the Commission’s view, this includes, but is not limited to, representations and evidence as to whether any of the factors incorporated in Article 4 of the Convention may prohibit the imposition of the death penalty. [53]

 

71.          In reaching this conclusion, the Commission has identified a principle common to those democratic jurisdictions that have retained the death penalty, according to which the death penalty should only be implemented through "individualized" sentencing. [54] Through this mechanism, the defendant is entitled to present submissions and evidence in respect of all potentially mitigating circumstances relating to his or her person or offense, and the court imposing sentence is afforded discretion to consider these factors in determining whether the death penalty is a permissible or appropriate punishment. Mitigating factors may relate to the gravity of the particular offense or the degree of culpability of the particular offender, and may include such factors as the offender’s character and record, subjective factors that might have motivated his or her conduct, the design and manner of execution of the particular offense, and the possibility of reform and social readaptation of the offender.

 

72.          Applying these findings in the context of the case presently before it, the Commission has confirmed that Mr. Jacob has been convicted of capital murder pursuant to Section 234 of the Criminal Code of Grenada and that no provisions in the code have been identified that permit a judge or jury to consider the personal circumstances of an offender or his or her offense, such as the offender’s record or character, the subjective factors that may have motivated his or her conduct, or the offender’s likelihood of reform or social readaptation, in determining whether the death penalty is an appropriate penalty for a particular offender in the circumstances of the offender’s case.

 

          73.          In Mr. Jacob's case, the Trial Judge could not consider the mitigating factors present nor the character and personal circumstances of Mr. Jacob. The Trial Court could not take into account the evidence of Dr. Olubahkle Obikaya, a consultant psychiatrist who testified as to Mr. Jacob's state of mind on the date of the crime. Dr. Obikaya testified that Mr. Jacob was labouring under an intense and unpleasant belief that the deceased (whom he had previously had a personal relationship with prior to the commission of the crime) with the help of someone else had "cast a spell on him and actually believed that some harm or danger was going to come to him." Dr. Obikaya further testified that Mr. Jacob informed him that the relationship with the deceased continued, secretly, because the deceased's mother did not like the relationship. Dr. Obikaya also testified that Mr. Jacob related to him that on April 23, 1995, the date of the deceased's death, he and the deceased were having a friendly chat and that the last thing he remembered was the deceased saying, "Dennis, you going to die." [55]

 

74.          In addition, Dr. Obikaya testified that at that point something clicked in Mr. Jacob's mental state, possibly and abnormal electrical brain discharge and that it was possible that Mr. Jacob could have been in that fused state that morning. Dr. Obikaya testified  that the fused state is actually a "state in which an individual affirms a series of actions which he is totally unaware of, for which he is unable to account for afterwards," and that someone in that state could not know whether their action is right or wrong. The Petitioners maintain that Dr. Obikaya testified on cross-examination that it was possible that Mr. Jacob was in a fused state on the morning of April 23, 1995, and in answer from the Jury, Dr. Obikaya stated that he was convinced that Mr. Jacob was telling the truth. [56] Upon satisfying the elements of Section 234 of the Code, Mr. Jacob was convicted of murder. The Trial Court had no discretion in passing sentence on him because death is the automatic penalty under the law of Grenada.

 

75.          Consequently, the Commission concludes that once Mr. Jacob was found guilty of capital murder, the law in Grenada did not permit a hearing by the courts as to whether the death penalty was a permissible or appropriate penalty. There was no opportunity for the trial judge or the jury to consider such factors as Mr. Jacob's character or record, the nature or gravity of his crime, or the subjective factors that may have motivated his conduct, in determining whether the death penalty was an appropriate punishment. Mr. Jacob was likewise precluded from making representations on these matters, as a consequence of which there is no information on the record as to potential mitigating factors that might have been presented to the trial court. The court sentenced Mr. Jacob based solely upon the category of crime for which he was convicted.

 

76.          In this context, and in light of the Commission's prior analysis of mandatory death penalties under the Convention, the Commission concludes that the State violated Mr. Jacob's rights under Articles 4(1), 5(1), 5(2), and 8(1) of the Convention, in conjunction with violations of Articles 1(1) and 2 of the Convention, by sentencing him to a mandatory death penalty.

 

77.          With respect to Article 4(1) of the Convention, the Commission concludes that the trial court was compelled under the State’s legislation to impose a death sentence upon Mr. Jacob with no discretion to consider his personal characteristics and the particular circumstances of his offense to determine whether death was an appropriate punishment. Mr. Jacob was not provided with an opportunity to present representations and evidence as to whether the death penalty was an appropriate punishment in the circumstances of his case. Rather, the death penalty was automatically imposed on Mr. Jacob without principled distinction or rationalization as to whether it was an appropriate form of punishment in the particular circumstances of his case. Moreover, the propriety of the sentence imposed was not susceptible to any effective form of judicial review, and Mr. Jacob's execution and death at the hands of the State is imminent, his conviction having been upheld on appeal to the highest court in Grenada. The Commission therefore concludes that the State has by this conduct violated Mr. Jacob's rights under Article 4(1) of the Convention not to be arbitrarily deprived of life and therefore, Mr. Jacob's death sentence is unlawful. [57]

 

78.          The Commission further concludes that the State, by sentencing Mr. Jacob to a mandatory death penalty absent consideration of his individual circumstances, has  failed to respect Mr. Jacob's rights to have his physical, mental and moral integrity respected contrary to Article 5(1) of the Convention, and has subjected him to cruel, inhuman, or degrading punishment or treatment in violation of Article 5(2). The State sentenced Mr. Jacob to death solely because he was convicted of a predetermined category of crime. Accordingly, the process to which Mr. Jacob has been subjected would deprive him of his most fundamental rights, his right to life, without considering the personal circumstances and the particular circumstances of his offense. Not only does this treatment fail to recognize and respect Mr. Jacob's integrity as an individual human being, but in all of the circumstances has subjected him to treatment of an inhuman or degrading nature. Consequently, the State has violated Article 5(1) and 5(2) of the Convention in respect of Mr. Jacob. [58]

 

79.          Finally, the Commission concludes that the State has violated Article 8(1) of the Convention, when read in conjunction with the requirements of Article 4 of the Convention, by subjecting Mr. Jacob to a mandatory death sentence. By denying Mr. Jacob an opportunity to make representations and present evidence to the trial judge as to whether his crime permitted or warranted the ultimate penalty of death, under the terms of Article 4 of the Convention or otherwise, the State also denied Mr. Jacob of his right to fully answer and defend the criminal accusations against him, contrary to Article 8(1) of the Convention. [59]

 

80.          It follows from the Commission’s findings that, should the State execute Mr. Jacob pursuant to his death sentence, this would constitute further egregious and irreparable violations of Articles 4 and 5 of the Convention.

 

3.       Article 4(6) of the Convention and the Prerogative of Mercy in Grenada

 

81.          Article 4(6) of the Convention provides that "[e]very person condemned to death shall have the right to apply for amnesty, pardon, or commutation of sentence, which may be granted in all cases. Capital punishment shall not be imposed while such a petition is pending decision by the competent authority."

82.          The Petitioners in the present case have also contended that the process for granting amnesty, pardon or commutation of sentence in Grenada is not consistent with Article 4(6) of the Convention because it does not provide for certain procedural rights which the Petitioners assert are integral to render this right effective. In this connection, the authority of the Executive in Grenada to exercise its Prerogative of Mercy is prescribed

in Sections 72, 73 and 74 of the Constitution of Grenada, which provide as follows:

 

72(1) The Governor-General may, in Her Majesty’s name and on Her Majesty’s behalf.-

(a) grant a pardon, either free or subject to lawful conditions, to any person convicted of any offence;

(b) grant to any person a respite, either indefinite or for a specified period, of the execution of any punishment  imposed on that person for any offence;

(c) substitute a less severe form of punishment for any punishment imposed on a person for any offence; or

(d) remit the whole or any part of any punishment imposed on any person for any offence or of any penalty or forfeiture otherwise due to the Crown on account of any offence.

(2) The powers of the Governor-General under subsection (1) of this section shall be exercised by him in accordance with the advice of such Minister as may for the time being be designated by the Governor-General, acting in accordance with the advice of the Prime Minister.

73 (1) There shall be an Advisory Committee on the Prerogative of Mercy which shall consist of –

(a)                 the Minister for the time being designated under Section 72(2) of this Constitution who shall be the Chairman;

(b)                 the Attorney General;

(c)                 the chief medical officer of the Government of Grenada; and

(d)                 three other members appointed by the Governor-General, by instrument in writing under his hand.

(2) A member of the Committee appointed under subsection (1)(d) of this section shall hold his seat thereon for such period as may be specified in the instrument by which he was appointed:

Provided that his seat shall become vacant –

(a) in the case of a person who, at the date of his appointment was a Minister, if he ceases to be a Minister; or

(b) if the Governor-General by instrument in writing under his hand, so directs.

(3)                The Committee may act notwithstanding any vacancy in its membership or absence of any member and its proceedings shall not to be invalidated by the presence or participation of any person not entitled to be present at or to participate in those proceedings.

(4)                The Committee may regulate its own procedure.

(5)                In the exercise of his functions under this section, the Governor-General shall act in accordance with the advice of the Prime Minister.

 

74(1) Where any person has been sentenced to death (otherwise than by a court-martial) for an offence, the Minister for the time being designated under section 72(2) of this Constitution shall cause a written report of the case from the trial judge (or, if a report cannot be obtained from the judge, a report on the case from the Chief Justice), together with such other information derived from the record of the case or elsewhere as he may require, to be taken into consideration at a meeting of the Advisory Committee on the Prerogative of Mercy; and after obtaining the advice of the Committee he shall decide in his own deliberate judgment whether to advise the Governor-General to exercise any of his powers under section 72(1) of this Constitution.

(2) The Minister for the time being designated under section 72(2) of this Constitution may consult with the Advisory Committee on the Prerogative of Mercy before tendering advice to the Governor-General under section 72(1) of this Constitution in any case not falling within subsection (1) of this section but he shall not be obliged to act in accordance with the recommendation of the Committee.  

83.          In addressing this issue, the Commission first observes that in the cases of Rudolph Baptiste and Donnason Knights from Grenada, the Commission determined that the process for exercising the Prerogative of Mercy under Sections 72, 73, and 74 of the Grenadian Constitution did not guarantee the condemned prisoners in those cases an effective or adequate opportunity to participate in the mercy process, as required under Article 4(6) of the Convention. [60]

 

84.          In reaching this conclusion, the Commission interpreted the right to apply for amnesty, pardon or commutation of sentence under Article 4(6), when read together with the State's obligations under Article 1(1) of the Convention, as encompassing certain minimum procedural guarantees for condemned prisoners, in order for the right to be effectively respected and enjoyed. These protections were held to include the right on the part of condemned prisoners to submit a request for amnesty, pardon or commutation of sentence, to be informed of when the competent authority will consider the offender's case, to make representations, in person or by counsel, to the competent authority, and to receive a decision from that authority within a reasonable period of time prior to his or her execution. [61] It was also held to entail the right not to have capital punishment imposed while such a petition is pending decision by the competent authority. [62]

 

85.          In making this determination in the cases of Rudolph Baptise, Donnason Knights, and McKenzie et al., the information before the Commission indicated that neither the legislation nor the courts in Grenada and in Jamaica guaranteed the prisoners in those cases any procedural protection in relation to the exercise of the Prerogative of Mercy. Rather, the petitioners and the State in those cases indicated that according to domestic jurisprudence at that time, the exercise of the power of pardon in Jamaica involved an act of mercy that was not the subject of legal rights and therefore is not subject to judicial review, and cited in support the decision of the Judicial Committee of the Privy Council in the Reckley Case, supra.

 

86.          Since adopting its report in the cases of Rudolph Baptise and Donnason Knights and McKenzie et al., the Commission has received information that in a September 12, 2000, judgment in the case of Neville Lewis et al. v. The Attorney General of Jamaica, the Judicial Committee of the Privy Council found that an individual's petition for mercy under the Jamaican Constitution is open to judicial review. [63] The Judicial Committee of the Privy Council also found that the procedure for mercy must be exercised by procedures that are fair and proper, which require, for example, that a condemned individual be given sufficient notice of the date on which the Jamaican Privy Council will consider his or her case, to be afforded an opportunity to make representations in support of his or her case, and to receive copies of the documents that will be considered by the Jamaican Privy Council in making its decision. [64]

 

87.          Notwithstanding the determination in the Neville Lewis Case, however, there is no information in the present case indicating that the State has extended the legal requirements articulated in that decision to Mr. Jacob. Accordingly, based upon the information available, the Commission finds that the procedure available to Mr. Jacob to seek amnesty, pardon or commutation of sentence has not guaranteed him an effective or adequate opportunity to participate in the mercy process.

 

88.          The Commission also concludes that the State has violated Mr. Jacob's rights pursuant to Article 4(6) of the American Convention by failing to guarantee him an effective right to apply for amnesty, pardon or commutation of sentence, to make representations, in person or by counsel, to the Advisory Committee on the Prerogative of Mercy, and to receive a decision from the Advisory Committee within a reasonable time prior to his execution.

 

89.          Given its foregoing conclusions as to the legality of Mr. Jacob's death sentence under Articles 4, 5 and 8 of the Convention, the Commission does not consider it necessary to determine whether sentencing Mr. Jacob to a mandatory death penalty violated his rights to equal protection of the law contrary to Article 24 of the Convention.

 

continued...

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[32] Golder v. UK (1975) Series A Nº. 18.

[33] Airey v. Ireland (1979) Series A Nº. 32.

[34] Article 6(3) of the European Convention provides: "Everyone charged with a criminal offence has the following minimum rights: (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require."

[35] Donnason Knights, (Grenada) Report Nº 47/01, Annual Report of the Inter-American Commission on Human Rights 2000, Volume II, at 841 OEA/Ser.L/V/II. 111, Doc. 20 rev., 16 April 2001; and the following cases can be found in Annual Report of the Inter-American Commission on Human Rights 1999, Volume I, OEA/Ser.L/VII.106, Doc. 3 rev., April 13, 2000 - Paul Lallion (Grenada) Report Nº 124/99, Case 11.765 at; Rudolph Baptiste, Report Nº. 38/00, Case 11.743 (Grenada);Michael Edwards, Report Nº. 24/00, Case Nº. 12.067 (The Bahamas), at 177, Omar Hall, Report Nº. 25/00, Case 12.068, at 184 (The Bahamas); Brian Schroeter and Jeronimo Bowleg, at 190, (The Bahamas).

36 See I/A Court H.R., Neira Alegria Case, Preliminary Objections, Judgment, December 11, 1991 pp. 44-45, at paras. 25-31.

37 Donnason Knights, (Grenada) Report Nº 47/01, Annual Report of the Inter-American Commission on Human Rights 2000, Volume II, at 841 OEA/Ser.L/V/II. 111, Doc. 20 rev., 16 April 2001; and the following cases can be found in Annual Report of the Inter-American Commission on Human Rights 1999, Volume I, OEA/Ser.L/VII.106, Doc. 3 rev., April 13, 2000 - Paul Lallion (Grenada) Report Nº 124/99, Case 11.765 at; Rudolph Baptiste, Report Nº. 38/00, Case 11.743 (Grenada); Michael E.dwards, Report Nº 24/00, Case 12.067 (The Bahamas), at 177, Omar Hall Report Nº 25/00, Case 12.068, at 184 (The Bahamas); Brian Schroeter and Jeronimo Bowleg, at 190, (The Bahamas).

[38] Donnason Knights, (Grenada) Report Nº 47/01, Annual Report of the Inter-American Commission on Human Rights 2000, Volume II, at 841 OEA/Ser.L/V/II. 111, Doc. 20 rev., 16 April 2001; and the following cases can be found in Annual Report of the Inter-American Commission on Human Rights 2000, Volume I, OEA/Ser.L/VII.111, Doc. 3 rev., April 16, 2000 - Rudolph Baptiste, Report Nº 38/00, Case . 11.743 (Grenada) Annual Report Of The Iachr 1999, p. 721, at p. 738; Report Nº 48/01, Michael Edwards, Case 12.067 (The Bahamas) at 620, Omar Hall, Case 12.068, at 620 (The Bahamas), Brian Schroeter and Jeronimo Bowleg, at 620 (The Bahamas); McKenzie et al. (Jamaica), Report Nº 41/00, Annual Report Of The IACHR 1999, P. 918, At P. 967.

[39] See e.g Rudolph Baptiste, Donnason Knights, Mckenzie et al. Case, supra, para. 169.

40 See Santiago Marzioni v. Argentina, Report Nº. 39/96, Annual Report of the IACHR 1996, p. 76, paras. 48-52. See also Clifton Wright v. Jamaica, Case  9260 , Annual Report of the IACHR 1987-88, p. 154.

41 Section 234 of the Criminal Code, Title XVIII, Cap. 76 , p. 790, contains a proviso to the death penalty for a crime of murder.  The proviso states:

Provided that the sentence of death shall not be pronounced or recorded against a person convicted of murder if it appears to the Court that at the time when the offence was committed he was under the age of eighteen years; but, in lieu of such punishment, the Court shall sentence the juvenile offender to be detained during Her Majesty’s pleasure, and, if so sentenced, he shall, notwithstanding anything in the other provisions of any other Law or Ordinance, be liable to be detained in such place and under such conditions as the Governor may direct, and whilst so detained shall be deemed to be in legal custody.

42 Donnason Knights, (Grenada) Report Nº. 47/01, Annual Report of the Inter-American Commission on Human Rights 2000, Volume II, at 841 OEA/Ser.L/V/II. 111, Doc. 20 rev., 16 April 2001; and the following cases can be found in Annual Report of the Inter-American Commission on Human Rights 2000, Volume I, OEA/Ser.L/VII.111, Doc. 3 rev., April 16, 2000 - Rudolph Baptiste, Report No. 38/00, Case No. 11.743 (Grenada) Annual Report Of The Iachr 1999, p. 721, at p. 738 ; Report Nº. 48/01, Michael Edwards, Case Nº. 12.067 (The Bahamas) at 620; Omar Hall, Case 12.068, at 620 (The Bahamas) Brian Schroeter and Jeronimo Bowleg, at 620 (The Bahamas). McKenzie et al. (Jamaica), Report No. 41/00, Annual Report Of The IACHR 1999, P. 918, at p. 967, para 178.

43 Donnason Knights, (Grenada) Report Nº 47/01, Annual Report of the Inter-American Commission on Human Rights 2000, April 16, 2001- Rudolph Baptiste, Report Nº 38/00, Case 11.743 (Grenada) Annual Report of the IACHR 1999, p. 721, at p. 738.

44 Article 4 of the American Convention provides as follows:

Article 4. Right to Life

1. Every person has the right to have his life respected. This right shall be protected by law and, in general, from the moment of conception. No one shall be arbitrarily deprived of his life.

2. In countries that have not abolished the death penalty, it may be imposed only for the most serious crimes and pursuant to a final judgment rendered by a competent court and in accordance with a law establishing such punishment, enacted prior to the commission of the crime. The application of such punishment shall not be extended to crimes to which it does not presently apply.

3. The death penalty shall not be reestablished in states that have abolished it.

4. In no case shall capital punishment be inflicted for political offenses or related common crimes.

5. Capital punishment shall not be imposed upon persons who, at the time the crime was committed, were under 18 years of age or over 70 years of age; nor shall it be applied to pregnant women.

6. Every person condemned to death shall have the right to apply for amnesty, pardon, or commutation of sentence, which may be granted in all cases. Capital punishment shall not be imposed while such a petition is pending decision by the competent authority.

45 Article 5 of the Convention provides as follows:

Article 5 – Right to Humane Treatment

1. Every person has the right to have his physical, mental, and moral integrity respected.

2. No one shall be subjected to torture or to cruel, inhuman, or degrading punishment or treatment. All persons deprived of their liberty shall be treated with respect for the inherent dignity of the human person.

3. Punishment shall not be extended to any person other than the criminal.

4. Accused persons shall, save in exceptional circumstances, be segregated from convicted persons, and shall be subject to separate treatment appropriate to their status as unconvicted persons.

5. Minors while subject to criminal proceedings shall be separated from adults and brought before specialized tribunals, as speedily as possible, so that they may be treated in accordance with their status as minors.

6. Punishments consisting of deprivation of liberty shall have as an essential aim the reform and social readaptation of the prisoners.

46 Article 8(1) of the Convention provides: “Every person has the right to a hearing, with due guarantees and within a reasonable time, by a competent, independent, and impartial tribunal, previously established by law, in the substantiation of any accusation of a criminal nature made against him or for the determination of his rights and obligations of a civil, labor, fiscal, or any other nature."

47 See e.g. Convention, Article 29 (providing, inter alia, that no provision of the Convention may be interpreted as restricting the enjoyment or exercise of any right or freedom recognized by virtue of the laws of any State Party or by virtue of another Convention to which one of the said states is a party, or to exclude or limit the effect that the American Declaration of the Rights and Duties of Man and other international acts of the same nature may have).

48 Donnason Knights, supra at 875-882, Rudolph Baptiste, supra at 740-763; and McKenzie et al. Case, supra, para. 186-187, citing I/A Court H.R., Advisory Opinion OC-3/83 of September 8, 1983, Restrictions to the Death Penalty (Arts. 4(2) and 4(4) of the American Convention on Human Rights), Annual Report 1984, p. 31,  para. 52 (finding that the text of Article 4 of the Convention as a whole reveals a clear tendency to restrict the scope of the death penalty both as far as its imposition and its application are concerned); Anthony McLeod v. Jamaica, Communication Nº. 734/1997, U.N.Doc CCPR/C/62/734/1997. See similarly Baptiste Case, supra, paras. 74-75.

49 Donnason Knights, supra at 875-882, Rudolph Baptiste, supra at 740-763; McKenzie et al. Case, supra, para. 188, citing, inter alia, Woodson v. North Carolina 49 L Ed 2d 944, 961 (finding that "the penalty of death is qualitatively different from a sentence of imprisonment, however long. Death, in its finality, differs more from life imprisonment than a 100-year prison term differs from one of only a year or two. Because of that qualitative difference, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case").

50 Id, para. 189, citing Advisory Opinion OC-3/83, supra, para. 55 (observing with regard to Article 4 of the Convention that "three types of limitations can be seen to be applicable to States Parties which have not abolished the death penalty. First, the imposition or application of this sanction is subject to certain procedural requirements whose compliance must be strictly observed and reviewed. Second, the application of the death penalty must be limited to the most serious common crimes not related to political offenses. Finally, certain considerations involving the person of the defendant, which may bar the imposition or application of the death penalty, must be taken into account.").

51 Id, paras. 193-207. See similarly Baptiste Case, supra, paras. 80-94.

52 UNHRC, Eversley Thompson v. St. Vincent and the Grenadines, Communication Nº 806/1998 (October 18, 2000).

53 Donnason Knights, supra at 875-882, Rudolph Baptiste, supra at 740-763; and McKenzie et al. Case, supra, para. 207.

54 McKenzie et al. Case, supra, paras. 208, 212-219, citing Woodson v. North Carolina 49 L Ed 2d 944 (U.S.S.C.); The State v. Makwanyane and McHunu, Judgment, Case Nº. CCT/3/94 (6 June 1995) (Constitutional Court of the Republic of South Africa); Bachan Singh v. State of Punjab (1980) 2 S.C.C. 475 (Supreme Court of India). See also Baptiste Case, supra.

55 Pages 58-59 of the Trial Transcript.

56 Pages 59-60 of the Trial Transcript.

57 See similarly McKenzie et al. Case, supra, para. 234; Baptiste Case, supra, para. 127.

58 See similarly McKenzie et al. Case, supra, para. 235; Baptiste Case, supra, para. 128.

59 See similarly McKenzie et al. Case, supra, para. 237; Baptiste Case, supra, para. 130.

60 Rudolph Baptiste supra, 760-76; Donnason Knights, supra 878-882; and McKenzie et al. Case, supra, paras. 227-232.

61 Id., para. 228.

62 Id. The Commission reasoned that the right to apply for amnesty, pardon or commutation of sentence under Article 4(6) of the Convention may be regarded as similar to the right under Article XXVII of the American Declaration of every person "to seek and receive" asylum in foreign territory, in accordance with the laws of each country and with international agreements, which the Commission has interpreted, in conjunction with the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees, as giving rise to a right under international law of a person seeking refuge to a hearing in order to determine whether that person qualifies for refugee status. See Haitian Center for Human Rights and others v. United States, Case Nº 10.675 (13 Match 1997), Annual Report of the IACHR 1996, para. 155. The Commission also observed that some common law jurisdictions retaining the death penalty have prescribed procedures through which condemned prisoners can engage and participate in the amnesty, pardon or commutation process See Ohio Constitution, Art. III, s. 2, Ohio Revised Code Ann., s. 2967.07 (1993). See also Ohio Adult Parole Authority v. Woodward, Court File Nº. 96-1769 (25 March 1998) (U.S.S.C.).

63 Neville Lewis et al. v. The Attorney General of Jamaica and The Superintendent of St. Catherine District Prison, Privy Council Appeals Nos. 60 of 1999, 65 of 1999, 69 of 1999 and 10 of 2000 (12 September 2000) (J.C.P.C.), at p. 23.

64 Id., at 23-24.